Title: Opinion File 73-114 thru 73-117
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Permanent Link: http://ufdc.ufl.edu/WL00003359/00001
 Material Information
Title: Opinion File 73-114 thru 73-117
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Bobby Blain's Collections - Opinion File 73-114 thru 73-117
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 44
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003359
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
rf II


SORT ANSWERS:


1. A review of the applicable case law in Florida, construing
S. 337.31, reveals no specific definition or factual context useful
determining what constitutes "maintenance" within the meaning of
e statute.

2. There is apparently no minimum width required for F.S. 337.31
operate. The rule is that the statute applies "to the extent in
dth which has been actually worked for" the four year period. By
idicial gloss on the statute this would seemingly also include that
nd actually needed to support and maintain the traveled portion of
ie road, including the shoulders. See, Broward County vs. Bouldin
.4 So. 2d 737 (Fla. 1959). This, of course, would be an issue for
ie trier of fact.


DISCUSSION:


1. In answer to your question as to what constitutes maintenance
.thin the purview of the above statute, an examination of the perti-
-nt case law revealed little explanation of what the statute calls
xr. The few Florida cases which have construed this statute all
.fer to the word maintenance in their opinion but none of them go
ito any detailed discussion as to what the word requires with the
.spect to the operation of the statute. See Pasco County vs.
>hnson 67 So. 2d 639 (Fla. 1953); State Road Department vs. Lewis
F0 So. 2d 817 (Fla. 1964); Broward County vs. Bouldin 114 So. 2d
17 (Fla. 1959); and Lovey vs. Escambia County 141 So. 2d 761 (1st
;A 1962).
indication as

~Theol O pe'la~te opinionn found which gives any dit
toe c0dun tbe Co-rt at-VeS

..cotS 70VIV ^


KEY WORDS: /,^44 ^ '

RESEARCH MEk: M C aY4, R

: MYRON GIBBONS
: ROB WILLIAMS I^J

: Florida Statutes 337.31; Maitenance, Definition Of

ted: 7 February, 1973

ESTIONS PRESENTED:

For purposes of F. 337.31,hat is the definition of the
ctual requirements of -ter "Maintenance" of roads by a county.
so, does this statute require any minimum road width to be
plicable.





#g-115
In order for a new road to be constructed, it is not necessary
that the surface be covered by concrete, asphalt, or any other
such materials....When a county accepts a road as laid out by
the owner or which is offered to be dedicated by the owner in
the raw, and then goes in and cleans up the brush, stumps, trees
and fills up the holes and ruts of such road so that the same
can be usable, such activity on the part of the county consti-
tutes construction within the meaning of Florida Statutes 2d
341.59 and 341.66 FSA. [Note: FS 341.59 and 341.66 were the
predecessors of the present statute].

The above statement, by its own language, pertains only to what con-
stitutes construction of a road and not what constitutes maintenance.
B inference, however, certainly similar activity on the part of a
county, i.e., filling in holes and ruts, cleaning up brush, etc.,
wculd sufficiently constitute maintenance as well. Moreover, in
S ate Road Department vs. Lewis, supra, the Florida Supreme Court in
discussing FS 337.31 utilized the language "continuous maintenance
a d upkeep." Accordingly, it is reasonable to conclude that mainte-
n nce certainly entails upkeep and vice versa. This, of course, is
o little assistance in the present case, inasmuch as the question
tlen arises as to what constitutes "upkeep." In summary, therefore,
tle definition of the word "maintain" as it is used in Florida Statutes
3.7.31 has never been specifically established. As stated above, the
Courts used this word and the word maintenance in its general sense
wich logically should, and apparently is, determined by the factual
c ntext of each case.

Other jurisdictions have considered this question and have con-
sirued the phrase "maintenance of public roads" in various ways. In
T rant County vs. Shannan 104 SW 2d 4 (Tex. 1937) the Supreme Court
of Texas stated that the phrase "maintenance of public roads" includes
"n its scope the laying out, opening, and constructing of new roads
as well as repairing those already laid out." In Crow vs. Tinner 47
S 2d 391 (Tex. Civ. Ct. of App. 1932) the Court held that the phrase
maintenancee of public roads" is not restricted literally to the
mnual labor of repairing existing roads, but included the doing of
everything "necessarily and appropriately connected with aId incidental
to the laying out, opening, and the construction of public roads, and
t e maintenance of an efficient road system." Finally, in State ex
re1 Morford vs. Emerson 10 Atlantic 2d 515 (Del. 1939) the Supreme
Court of Delaware stated that "maintenance of highways means not only
k eping in repair, but also the continued existence of highways as
a system of roads for public use." As with the Florida definitions,
however, the above non-Florida judicial definitions are likewise sub-
j ctive to best, and again would require, a case by case application.

2. As to the question of what is the minimum width of the road
in the context of Florida Statutes 337.31, the case law is somewhat
Sre informative. In Broward County vs. Bouldin, supra, the Court

i c d thi ptb &TV i t1r" context of a public prescriptiv-
..aet, S.-...---.





7 3 -116
Generally, the width of a prescriptive way is limited to
the extent of the actual user. However, it is well settled
that when a public easement by prescription is acquired for
1 road pusposes, the width of the easement is not limited to
that portion of the roadway actually traveled or paved. It
includes also the land which is needed and used for the sup-
port and maintenance of the paved or traveled portion. This
includes shoulders.

moreover, the statute itself states in sub-part (1), that "such road
hhall be deemed to be dedicated to the public to the extent in width
which has been actually worked for the period aforesaid." Consequently,
think it is a safe conclusion that there is no minimum width required
ythe statute and that the extent of dedication under the statute is
imply controlled by that portion of the road which has actually been
sed and worked for the four year period. In addition, none of the
cases found on the subject indicated that a minimum width was required
or the statute to operate.

Moreover, with respect to what constitutes a "road", the following
definitions are found in Chapter 334, Florida Statutess

(a) FS 334.03( 9) Roads. The term road shall be construed
to include streets, sidewalks, alleys, highways, and other ways
open to travel by the public, including the road bed, right of
Sway, and all culverts, drains, sluices, ditches, water storage
areas, waterways, embankments, slopes, retaining walls, bridges,
tunnels, and viaducts necessary for the maintenance of travel
i and all ferries used in connection therewith.

(b) FS 334.03 (15) State Roads. All streets, roads, highways
and other public ways open to travel by the public generally and
dedicated to the public use, according to law or by prescription
and designated by the department as provided by law as parts of
the state highway system, including the road bed, right of way,
embankments, slopes, retaining walls, sidewalks, bridges, tunnels
and viaducts necessary for the maintenance of travel thereon and
all ferries in connection therewith.

i 3. Finally, it should be noted that, in order for F.S. 337.31
o operate in the first place, the road under consideration must have
S een constructed by the county initially and then maintained, or kept
4n repair, etc. before the presumption of dedication attaches. Thus,
feel that some investigation should be made in the present case to
S determine who actually constructed the road under consideration, to
Sdetermine whether this statute has any bearing.

| i










ONCLUSION:

i In light of the above discussion, it is my opinion, that:

(a) The case law is insufficient to determine whether the mere
lowing of grass on the shoulders of a road would constitute maintenance,
ind accordingly, this issue would be a mixed question of law-in-fact
:or the Court to decide.

(b) There is no minimum width required for Statutes 337.31 to
Apply, the rule being, that the statute is applicable to the portion
of the road actually used and worked.






AFFIDAVIT11

On this day, before me, the undersigned authority, personally

appeared who, being first duly

sworn, deposes and says that he is

of :he Engineering Department of Hillsborough County, Floridat that

ba ed upon his personal knowledge and review of the official records

of the Engineering Department of Hillsborough County, the county has

maintained the property described in Exhibit A, attached hereto and

madw a part hereof, as part of a county road from on or about

____, 19 until its conveyance to the Southwest Florida

Wat r Management District on ,19 .


Sworn to and subscribed before
me dtis day of'
19.



Notary Public
My commissionn expires *



STATE OF FLORIDA
COu ,'Y OF HILLSBOROUGH

I HEREBY CERTIFY that on this day of 19 ,

bef re me, the undersigned authority, personally appeared

known to me and known to me to be the person described

in and who executed the foregoing Affidavit, and he acknowledged before

me :hat he executed the same for the uses and purposes therein expressed.

WITNESS my hand and official seal the date aforesaid.




Notary Public
My commission expires:




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